Complaint withdrawn: Issue estoppel does not apply

When an employee believes he has been wrongfully terminated, the employee has two options: bring a court action against the former employer seeking damages for wrongful dismissal; or, alternatively, make a complaint pursuant to provincial employment standards legislation to recover termination pay.

Prior court decisions have held that an employee cannot seek recovery both under employment standards legislation and through a court action. Where the employee has received judgment pursuant to employment standards legislation, the employee is estopped from bringing or continuing a civil action.

This is known as issue estoppel. In further support of this, employment standards legislation often provides that an employee cannot commence a civil action for wrongful dismissal if a complaint for termination pay has been filed in accordance with the legislation.